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The State of New Hampshire has taken a bold step in its dealings with FirstNet that could serve as a model. Will other states (and territories) follow the Granite State’s lead?

In a few short months, FirstNet is expected to select a vendor to build, operate and maintain the Nationwide Public Safety Broadband Network (“NPSBN”). After some consultation, FirstNet and its newly selected partner will present a plan to each state for construction of a radio access network (“RAN”) consisting of towers, backhaul and other infrastructure within that state. Each state has the option of accepting the FirstNet plan or developing its own RAN plan as an alternative.

For any state that may want to pursue an alternative plan, there are procedural hurdles and regulatory approvals that must be obtained, but the principal challenge may well be timing. From the date the FirstNet plan is presented to a state, the Governor will have 90 days to decide whether to accept this plan or opt-out and pursue an alternate plan that offers a better approach for meeting the state’s public safety coverage requirements.

If a state decides to opt-out, it must notify the FCC, NTIA and FirstNet within this 90 day window. States that fail to provide notice of an opt-out decision will lose that opportunity. Making an opt-out decision without any real alternative to the FirstNet plan in front of a state’s Governor would be difficult to say the least.

In the event a state files an opt-out notice, the state must develop and complete within 180 days requests for proposals (“RFP”) for the construction, maintenance and operation of the RAN for the State. Completing an RFP and developing an alternative plan within 270 days (starting from delivery of FirstNet’s plan) is a significant challenge.

However, the State of New Hampshire may have found a formula for addressing this timing challenge. Rather than trying to develop a plan under an almost impossible “shot clock,” New Hampshire took the pro-active approach, issuing an RFP in December 2015 and recently selecting a vendor –Rivada Networks–for the purpose of creating an alternative plan to be compared to the FirstNet plan.

New Hampshire has not decided to opt-out. However, with a vendor in place to evaluate the FirstNet plan and develop an alternative proposal before the Governor’s decision, New Hampshire has positioned itself to make a meaningful choice. The question now is how many other states (or territories) will follow this path?

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For several years, the major incumbent local exchange carriers (ILECs) have been heralding the benefits of transitioning their networks to IP technology. The FCC has supported this transition. Agreeing that “less is often more” and reviewing related decisions in one entry may be helpful, this entry highlights the FCC’s recent decisions on policies and procedures for implementing the IP transition.

This is the 1st entry in a two part-series. Implications for end users and competitive carriers will be the focus of the 2nd entry.

The rules on copper loop retirements and the IP transition for retail voice services apply to price cap and rural rate-of-return ILECs with minor distinctions. The rules on wholesale services pertain principally to the price cap ILECs as these carriers offer the vast preponderance of special access and wholesale platform voice services. The FCC deserves a “tip-of-the-hat” on these decisions; the agency evaluated the merits of numerous positions and made reasonable decisions on countless issues.

An important caveat is that each ILEC sets its own plans and time lines for implementing its IP transition. There are no deadlines or due dates. Subject to the rules adopted in these FCC decisions, the ILECs may implement their IP transitions locally, state-wide or throughout all of their service territories. The same is true for copper loop retirements.

The procedural paths that include notices to customers or competitors vary.

Copper Loop Retirements. The FCC updated copper retirement rules that had been in effect for years.  Importantly, the copper replacements are subject to notice obligations, but not FCC approval. Two major changes are (1) the agency declined to allow oppositions or objections to notices of copper loop replacements, but imposed a “good faith communication requirement” on ILECs to provide additional information so that interconnecting services providers can implement changes in their networks without service disruptions, and (2) increased the notice period to just over 180 days.

Each ILEC is required to provide notice of a copper loop retirement to the Commission on the same date it provides notice “to each information service provider and telecommunications service provider that directly interconnects” to the ILEC’s network as well as changes in prices, terms or conditions associated with a copper loop retirement. The Commission then issues a Public Notice announcing the filing, effectively starting the 180-day period. Within 90 days of the date of this Public Notice, the ILEC must submit a certification that attests to timely notifications and other matters.

In addition, an ILEC must provide 180 days written notice (via mail or e-mail if authorized by the customer) of copper retirements being replaced by FTTP services to business customers and schools and libraries, and 90 days to residential customers. The FCC declined to require the ILECs to make available retired copper loops to CLECs, but encouraged ILECs to negotiate the sale of abandoned copper loops.

The rules are now in effect. Among others, Verizon and CenturyLink, are implementing copper loop retirements, identifying retirement projects by reference to affected wire centers.

Wholesale Services. In order to discontinue wholesale services (special access services and wholesale voice service platforms), each ILEC must file applications to discontinue service under Section 214 of the Communications Act. In addition, the FCC denied USTelecom’s Petition for Reconsideration of the declaratory ruling in which the FCC concluded that the term “service” in section 214(a) is defined functionally and not solely by service definitions in ILEC tariffs.

Broadly speaking, ILECs must establish that replacement IP wholesale services are “reasonably comparable” to the existing TDM services in terms of capacity, price and quality of service. For example, 100 Mbps Ethernet access service priced at market rates is not a reasonably comparable replacement for DS-1 special access service; substantially more bandwidth priced at a noticeably higher rate is not “reasonably comparable.” Importantly, “price-per-Mbps” and the net cost of the IP replacement special access service cannot be significantly higher than the pricing for the DS-1 or DS-3 service being replaced.

As a Section 214 discontinuance application is filed with the FCC, a copy must be served on the ILEC’s customers—CLECs, IXCs, wireless carriers and end users that acquire special access services directly from ILECs—as well as government offices specified under Section 214. Assuming the ILEC’s application meets the “reasonably comparable” standard, the FCC will “automatically grant” an ILEC’s Section 214 discontinuance application thirty (30) days after the application is placed on Public Notice.

This “reasonably comparable” standard is an interim rule, subject to the outcome of the FCC’s ongoing investigation into the price cap ILECs’ rates, terms and conditions for special access services—particularly DS-1 and DS-3 services. A final decision in the FCC’s multi-year special access investigation is expected this fall.

Rather than move forward under rules that will expire as the IP transition concludes, USTelecom filed a petition for review with the D.C. Circuit. Pet. for Review, United States Telecom Assoc. v. FCC, et al., Case No. 15-1414 (D.C. Cir., Nov. 12, 2015). USTelecom maintains that Section 214 does not require ILECs discontinuing wholesale TDM services to consider the impact on competitive carriers’ customers, the FCC’s Declaratory Ruling is inconsistent with Section 214 and applicable precedent, and the “reasonably comparable standard” should not apply pending the outcome of the FCC’s special access investigation.

Retail Voice Services. The FCC’s decision to facilitate the IP transition for retail wireline voice services also establishes a series of rules for “automatic grants” of ILEC Section 214 applications to discontinue TDM retail voice services. If the requisite showings are made, the ILECs may begin the transition to IP services 31 days after the applications are filed. In addition to customer notices (via mail or e-mail as authorized by a customer), the ILECs must engage in community outreach activities on the IP transition.

In support of this flexible approach, the FCC determined that the market interstate switched access services (which is tied to TDM technology) is competitive, noting the migration to wireless voice services and VoIP services have largely eroded the relevance of ILECs’ switched access services.

In addressing retail customers’ concerns, the FCC requires that replacement IP wireline voice services must (i) have substantially similar network performance metrics (latency of 100 ms or less for 95% of all peak period round trip measurements and data loss not worse than 1% for packet-based networks); (ii) maintain service availability at 99.99%; and (iii) cover the same geographic footprint as the discontinued TDM service. These criteria are intended to be technology neutral; thus, a fixed wireless replacement that meets these criteria is an acceptable replacement technology. Each ILEC must certify that each IP service “platform” meets these requirements; in order to do so, the ILEC must follow the FCC test procedures, except ILECs having 100,000 or fewer subscribers may use other test procedures.

The cost of the replacement IP service cannot be substantially more than the TDM voice service being discontinued. The IP replacement services must support critical applications such as 9 1 1 and access for persons with physical disabilities and must be interoperable with widely adopted low-speed modem devices, such as fax machines and point of sale terminals, through 2025.

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The recent negative article on FirstNet that appeared in the Atlantic, “The $47 Billion Network That’s Already Obsolete” is an inaccurate critique of the First Responder Network Authority, otherwise known as FirstNet. To say the network is “obsolete” is so far off the mark that it is laughable.

There is little doubt that a nationwide public safety broadband network is needed to bring state-of-the-art technologies to first responders across the country. FirstNet is an outgrowth of the tragedy of 911 and the devastation of Hurricane Sandy which demonstrated the need for interoperable broadband communications among public safety agencies and personnel. Understandably, the Atlantic article was met by a unanimous backlash from public safety officials and associations supportive of FirstNet’s mission.

FirstNet was created by an Act of Congress in 2012 and contrary to the implications of the Atlantic article is led by some of the most dedicated public officials anyone could imagine. These individuals have worked tirelessly to bring the nation a public safety communications network that will serve our country for generations to come.

FirstNet is currently in the process of selecting a private sector partner to build, operate and maintain the network. After that selection, individual buildout plans for a Radio Access Network (“RAN”) will be presented to each state (and territory) for review. Together, these plans are the building blocks for a nationwide network, which under the law that created FirstNet must include substantial rural coverage.

Just how rural coverage is addressed remains a major issue for FirstNet. In order to reduce costs of the network, there has been much talk about FirstNet meeting its rural coverage requirements with deployables, such as drones, “cells on wheels” and balloons, rather than with permanent facilities spanning rural America. Some believe that such an approach, favoring urban areas at the expense of rural coverage, is simply not sufficient under the law. States will have the opportunity to develop their own RAN if they are not satisfied with the FirstNet approach. Time will tell whether the States and FirstNet can come together on the critical issue of rural coverage. So, while FirstNet certainly does not deserve any criticism for its efforts to date, let’s not start the victory parade just yet.

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The FCC released a Public Notice on August 8 announcing an Amendment to the Nationwide Programmatic Agreement (NPA) for the Collocation of Wireless Antennas. The NPA Amendment was entered into by the FCC, the Advisory Council on Historic Preservation (ACHP) and the National Conference of State Historic Preservation Officers (NCSHPO). The original NPA was entered into in 2001 to address the collocation of wireless antennas and the obligations of the FCC and infrastructure installers under Section 106 of the National Historic Preservation Act (NHPA). At that time, the issues related primarily to collocation on traditional “macro” towers.

The Amendment establishes a series of new exclusions from the FCC’s National Historic Preservation Act review process for Distributed Antenna Systems (DAS) and small cell facilities, recognizing the limited potential of these facilities to affect adversely historic sites and properties. The Pubic Notice details a series of new Stipulations to the NPA that will exclude these facilities from routine review if specific conditions are met for the wireless equipment. For example, the Amendment excludes collocation of small wireless antennas and associated equipment (i) on buildings and non-tower structures that are outside of historic districts or that are not historic properties, (ii) small or minimally visible wireless antennas and associated equipment in historic districts or on historic properties, and (iii) installed as replacements of small wireless antennas and associated equipment. The Amendment spells out “volume limits” that the equipment must meet to qualify for these exclusions.

This is the latest Commission action to facilitate deployment of much-needed additional wireless infrastructure to support the burgeoning demand for wireless broadband throughout the U.S. It follows Federal legislation in 2012 and significant actions by the FCC to implement that legislation.  In its major rulemaking on the subject adopted last year, the FCC noted the need for additional relief from NHPA reviews for small cell wireless infrastructure but expressed a preference for implementing these changes through the program alternative process.

In the Public Notice, the FCC noted the importance of small wireless infrastructure in enabling “5G” wireless service. 5G is still in its definitional stage, but it is characterized by much greater throughput and ubiquitous availability of service, which will require substantially more wireless infrastructure.

Kudos to all parties involved in easing the unnecessary regulation impeding new deployments of wireless infrastructure.

On August 4, 2016, the Federal Communications Commission (FCC) released a Declaratory Ruling granting in part two separate petitions that were filed last year – one by the Edison Electric Institute and American Gas Association, and another by Blackboard, Inc. – regarding application of the Telephone Consumer Protection Act of 1991 (TCPA) to certain types of non-telemarketing, informational “robocalls” placed by energy utilities and schools, respectively.  The TCPA prohibits, among other things, robocalls (calls and texts that are placed using an autodialer or a prerecorded or artificial voice) to mobile numbers unless they are made for an “emergency purpose” or with “prior express consent.”

The Declaratory Ruling confirms that:

(1) Energy utilities are deemed to have the requisite “prior express consent” to place robocalls regarding matters “closely related to the utility service” (namely, calls regarding planned or unplanned service outages or service restoration, calls regarding meter work, tree trimming, or other field work, calls regarding payment or other problems that threaten service curtailment, and calls about potential brown-outs due to heavy energy use) if placed to numbers provided by customers; and

(2) Schools can lawfully place certain types of robocalls to members of the school communities pursuant to the “emergency purpose” exception in the TCPA (namely, calls concerning weather closures, incidents of threats and/or imminent danger due to fires, dangerous persons, or health risks, and unexcused absences), and schools are deemed to have the requisite “prior express consent” to place other types of robocalls that are “closely related to the school’s mission” (namely, notifications of upcoming teacher conferences and general school activities) if placed to numbers provided by the recipients.

For a more detailed summary of the Declaratory Ruling, click here.

While the FCC largely granted the relief requested by the petitioners regarding the type of consent that is required to place “robocalls,” the agency reminded businesses of their obligation to comply with other TCPA requirements when placing robocalls, such as the opt-out requirements and ceasing robocalls to numbers that have been reassigned to new subscribers.  TCPA litigation is on the rise, and the FCC has adopted stringent requirements for automated calls and texts, so all businesses should ensure that they understand their obligations when using these technologies to communicate with current and former customers, employees, and others.

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On July 14, 2016, the Federal Communications Commission released a Report Order and Further Notice of Proposed Rulemaking issuing service rules for four spectrum bands above 24 GHz. These bands are intended to be the future home for 5G wireless services and technologies currently being developed. The FCC’s new rules authorize mobile operations on a licensed basis in the 27.5-28.35 GHz, 38.6-40 GHz, and 37-38.6 GHz bands. The FCC also allocated the 64-71 GHz band for Part 15 use, which, when combined with the Part 15 57-64 GHz band will result in 14 GHz of spectrum for unlicensed operations such as WiGig service – approximately 15 times the amount of unlicensed spectrum available in all of the lower bands combined.

The massive amount of spectrum the FCC made available is newsworthy by itself. But perhaps just as important is the speed with which the FCC moved on its 5G spectrum item. Only 21 months ago the FCC commenced the 5G regulatory process by releasing a Notice of Inquiry seeking initial feedback on the future of 5G services. A year later, it issued a Notice of Proposed Rulemaking proposing to allocate spectrum and followed that in nine months with last week’s Report and Order. It was a very quick conclusion to a proceeding many initially projected would take several years. Because of its speed, the FCC established the United States as a world leader in spectrum availability for 5G services. To top it off, initial reactions to the Report and Order are overwhelmingly positive with both the wireless industry and consumer-focused public interest groups praising the FCC’s mix of licensed and unlicensed service rules.

In the Further Notice, the FCC sought comment on authorizing fixed and mobile service in several additional bands: 24.25-24.45 GHz, 24.75-25.25 GHz, 31.8-33 GHz, 42-42.5 GHz, the 47.2-50.2 GHz, 50.4-52.6 GHz, and the 71-76 GHz band together with the 81-86 GHz bands (70/80 GHz bands) and the bands above 95 GHz. The FCC proposed a three-tiered approach to licensing in the 70/80 GHz band similar to the rules recently adopted for the 3.5 GHz band. The proposed tiers are (1) Incumbent Access users, which would receive the highest level of protection; (2) Priority Access Licensees (PALs); and (3) General Authorized Access (GAA) users. Comments are due September 30 and Reply Comments are due October 31.

Commercial 5G services are not yet available. And, for its part, the FCC did not define what will constitute 5G. But the FCC has now established a sandbox within which industry can innovate. We’ll see what the future will bring.

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Last week, the FAA finalized its rules for routine commercial use of small unmanned aircraft systems (drones).  The new rules govern the operation and certification of small drones weighing less than 55 pounds for non-hobby and non-recreational purposes.  The rules will permit UAS operations for applications such as the delivery of consumer goods, inspections of cell phone towers, bridges, pipelines, electric lines, and oil rigs, crop monitoring, search and rescue missions, research and development, and aerial photography, to name a few.  The rules will become effective 60 days after publication in the Federal Register.  For more information, please see Keller and Heckman’s Consumer Protection Connection blog post on this topic or contact Greg Kunkle (kunkle@khlaw.com; 202.434.4178).

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Last week, the FCC released a Fact Sheet outlining a draft Report and Order and Further Notice of Proposed Rulemaking the Commission will vote on in July.  The proposal would make additional licensed spectrum available in the 28, 37 and 39 GHz bands.  It also would make 7 GHz of spectrum available for unlicensed use in the 64-71 GHz band.  Finally, the item proposes shared use of the 37-37.6 GHz band between commercial and federal users.  The Further Notice will consider additional rule changes that could increase access to various bands above 24 GHz, including 70 GHz (71-76 GHz) and 80 GHz (81-86 GHz) bands.  For more information, please contact Wes Wright (wright@khlaw.com; 202.434.4239).

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Last week was the annual Wireless Infrastructure Show put on by the industry association PCIA – The Wireless Infrastructure Association. The first announcement at the show was a new name for the association–the Wireless Infrastructure Association or WIA—with a new website at www.wia.org.  There is no change in the mission or priorities of the association, just dropping an outdated and confusing old acronym dating back to the 1990s.

There was excellent attendance, many keynote speeches, a record number of exhibitors, and a strong education program. I moderated a session on the Tribal Consultation Process with five subject matter experts as speakers. The panelists addressed issues in the current FCC process including sometimes slow response times from Tribal authorities, adequacy of resources for the Tribes to carry out reviews, and appropriateness of fees charged by reviewing authorities. The panel agreed that significant progress has been made on clearing sites for Positive Train Control, the deadline for which was recently extended.

At other panels, tower company CEOs and CFOs noted that the wireless infrastructure business is not booming right now as the cellular providers have mustered their capital for the FCC’s current television spectrum incentive auction but predicted that it will ramp up again within the next 18 months in the normal cycle of this business.

Next year’s Wireless Infrastructure Show will be held May 22-25 in Orlando, FL.

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This is the second entry in a series on the “Industrial Internet,” focusing on the basic elements, legal issues and procurement implications, principally from the perspective of the end user.

Distinctions between the Industrial Internet and consumer IoT are not hard and fast. For example, many consumer IoT applications are implemented through smartphone apps.  On the other hand, some operating systems and related applications are intended for industrial settings such as General Electric’s Predix (which, in turn, may be accessible through smartphone/tablet based apps).  Telematics is one area in which the line between the Industrial Internet and consumer IoT is unrecognizable.  This entry looks to highlight several distinctions and areas of overlap.

Cyber Threats and Data Privacy.  Participants in the Industrial Internet are focused on insulating their “Industrial Intranets” from cyber threats and responding swiftly to cyberattacks. The consumer IoT focuses on personally identifiable information (PII) and other data collected from consumers that are subject to cyberattacks and other vulnerabilities.  The industrial sector is concerned with the Administration’s 2013 Executive Order—Improving Critical Infrastructure Cybersecurity, sharing cyber threat information without risk of litigation, and implementing industry-specific standards such as NERC Critical Infrastructure Protection (CIP) Cyber Security Reliability Standards.  In the context of the consumer IoT, protection of PII and other sensitive data is addressed under federal and state privacy, data security, and data breach notification laws and regulations, including sector-specific laws such as HIPPA, and industry guidelines.

Enhanced Analytics.  The Industrial Internet exists to acquire information from physical assets and implement real time response, make predictive judgements on wear and tear, adjust maintenance and replacement cycles, and to modify equipment design, materials or components based on increasingly sophisticated and powerful data processing capabilities.  This feedback will be implemented rapidly over the next several years as the software components of industrial machinery become more central to equipment design and operation.  Parallel developments in the consumer IoT are most apparent in the manufacture and maintenance of automobiles as car manufacturers send software updates to vehicles via wireless communications.  Presently, the consumer IoT is more focused on real time feedback (wearables) and operations such as app-based home security systems and smart thermostats; more in-depth analytics are on the horizon.

Industrial Intranets v. Consumer IoT — Communications.   The consumer IoT relies on unlicensed spectrum having varying propagation and coverage characteristics, commercial mobile service and, in most cases, backhaul via the public Internet to or from smart phones.  In some instances, consumer IoT applications may be routed from the mobile services provider to an entity’s MPLS port for delivery to its destination/data center.

Communications over Industrial Intranets are more diverse.  Critical infrastructure industry communications from the RF device to enhanced analytics resources may never traverse mobile wireless networks (but conveyed over privately licensed wireless networks), the public Internet or any carrier-provided service.  The challenge for critical infrastructure companies is that mobile broadband services and public Internet services are “best efforts” services.  SLAs for availability and latency, for example, are not offered.  Mobile services providers decline to set aside capacity to provide the wireless equivalents of private line or MPLS offerings.

In manufacturing and petrochemical facilities, communications to and from devices may be conveyed via fiber optic lines for on–premise, real- time review and response, and then  conveyed over carrier-provided services to the company’s enhanced analytics resources.  In other use cases, transport over the mobile broadband service is essential, such as data communications to and from farm machinery operating in fields or monitoring assets in transit.

Data Ownership.  Federal and state privacy laws presume that individuals own their on-line data that companies may collect. The myriad state and federal privacy laws dictate how online companies may acquire, use and share this data, and how this data must be secured, managed and discarded.  The questions of ownership and confidentiality of data generated on Industrial Intranets are more nuanced and will likely be a focal point for negotiations going forward.

Consider the operation of heavy equipment, such as jet engines or escalators used in rail commuter networks, such as the DC Metrorail system.  The escalator manufacturer and WMATA, respectively, have strong interests in acquiring the performance data of the Metrorail station escalators.  The “crunched data” could provide insights into whether recurring downtime events are attributable to improper or insufficient preventive maintenance; design, material or manufacture defects; or improper installation.  The data are important to the manufacturer (to implement changes in design or materials) and to end users (to implement changes in maintenance and for purchase decisions for replacement equipment).

A purchaser of capital equipment may also want to know how the performance of its equipment compares to the performance of the same or comparable equipment of other operators.  This “relative data” will indicate whether any significant maintenance/down time experienced by the operator are related to design, materials or manufacture defects or to operations or maintenance issues that the operator can address.  Over time, equipment warranties could be based on a given product’s performance relative to the performance of the same equipment sold to other companies.